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Non-compliance with obligations

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

35. As recognised in the 5 May 2010 President’s Decision, the role of the President of the Tribunal under Rule 7bis (A) of the Rules is simply to transmit the judicial finding of the relevant Chamber to the Security Council.[1] The Appeals Chamber therefore agrees that “it is not within the jurisdiction of the President to replace the assessment of the Chamber about a Member State’s violation of Article 28 of the Statute at the request of a party with his own”.[2] Accordingly, once a Trial Chamber has rescinded its request under Rule 7bis of the Rules, the President is no longer seised of the matter and his subsequent decision not to report the matter to the Security Council cannot be successfully challenged on appeal.

[1] 5 May 2010 President’s Decision, para. 5 [The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Nzabonimana’s Motion for the Implementation of the Order of Trial Chamber III of 4 March 2010 and for Allowing the Defence to Make Submissions Before the Security Council, 5 May 2010], referring to Blaškić Judgement on Request for Review [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997], para. 37.

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

[2] For instance, those responsible for war crimes, crimes against humanity, and genocide cannot invoke immunity from national or international jurisdiction even if they perpetrated the crimes while acting in their official capacity (seeBlaškić Appeal Decision, paras. 41, 42). See alsoBlaškić Appeal Decision, para. 51; Krstić Appeal Decision, paras. 24-27.

CONSIDERING that, pursuant to Article 28 of the Statute, States shall comply without undue delay with orders issued by the Mechanism;

[…]

CONSIDERING that, in accordance with Rules 8(A) and 131 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), non-compliance with any order relating to a proceeding before the Appeals Chamber may be reported to the United Nations Security Council;[1]

[…]

FIND that the Government of the Republic of Turkey has failed to comply with its obligations under Article 28 of the Statute to cooperate with the Mechanism in relation to the proceedings in this case and to comply without undue delay with a judicial order issued by the Mechanism; and

DETERMINE that, pursuant to Rules 8(A) and 131 of the Rules, this matter shall be reported to the United Nations Security Council.

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 33-35.